Opinion
No. 07-56085.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 15, 2010.
Michael J. Treman, Michael J. Treman Attorney at Law, Santa Barbara, CA, for Petitioner-Appellant.
Melvin James Thomas, pro se.
Corey J. Robins, AGCA-Office of the California Attorney General, Los Angeles, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Central District of California, Edward Rafeedie, District Judge, Presiding. D.C. No. 2:06-cv-04307-ER.
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Melvin James Thomas appeals from the district court's judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Thomas contends that the trial court violated his due process rights by declining to instruct the jury on the defense of un-consciousness. As a preliminary matter, the State has waived its argument that Thomas' claim is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Jordan v. Ducharme, 983 F.2d 933, 936 (9th Cir. 1993). Our independent review of the record, see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003), indicates that the state courts' rejection of Thomas' due process claim was not objectively unreasonable. See 28 U.S.C. § 2254(d)(1); see also Estelle v. McGuire, 502 U.S. 62, 72-73, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Duckett v. Godinez, 67 F.3d 734, 743-44 (9th Cir. 1995).
Finally, we construe Thomas' additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).